A legal showdown will begin playing out Monday in Ottawa, as one man's quest for justice and the public's right to know will be pitted against state secrecy invoked to protect the public from terrorist threats.
Maher Arar, a Canadian jailed in Syria as a suspected al-Qaeda member, has filed a motion for a vast public disclosure of government documents related to his ordeal. The motion will be heard by Mr. Justice Dennis O'Connor as he begins his third week of presiding over the fact-finding inquiry into Mr. Arar's detention.
Only contextual evidence has been heard until this point, and now Mr. Arar's lawyers are trying to get down to the nitty-gritty. They argue Ottawa officials must finally come clean about what they know — and cough up documents involving Mr. Arar's coerced confessions in Syria, and his previous interviews with U.S. border guards.
Mr. Arar's lawyers say their client falsely incriminated himself under torture in Syria after being deported there by the United States in 2002.
They say that Canada has documents stemming from the torture sessions and that standard national-security secrecy clauses typically used by the state to keep such information secret no longer hold — leaks and media reports have established that RCMP officers were investigating the possibility of an al-Qaeda cell in Ottawa, that these Mounties became suspicious of Mr. Arar before the U.S. sent him to Syria.
But lawyers acting for the Attorney General continue to push for secrecy saying Mr. Arar's request for disclosure should be tossed out entirely — as it relies on an “incomplete record, without a proper context” and is being made “without regard to ongoing investigations.”
In a rebuttal released this weekend, the government argues that “the premature and unfounded conclusion that the government has acted in bad faith” can't be used to justify disclosing information “which for legitimate reason must be protected.”
While a roomful of government documents on the Arar affair already exists and may be easily perused by Mr. O'Connor as he seeks to find the facts, it's unknown whether the public or even Mr. Arar will ever get to see them.
That's because even though the broader public may want to get at the truth, the state fears the public may not be able to handle it.
The position is that Canadian officials must be allowed to closely guard their methods of investigation, their confidential sources, their secret swapping with other countries, and their ongoing investigations. Otherwise, much is risked — including the country's security and its relationship with other states.
“[Any] perceptions of a relative weakening in Canada's ability to ensure protection of information could create a lessening of sensitive information and/or a downgrading,” argues the Attorney General.
Atop fears that international community could get jittery about Canada becoming an intelligence blabbermouth, there are also insinuations that sinister forces are watching the Arar inquiry, ever ready to inductively reason big pictures from benign tidbits.
“Seemingly innocuous information...in the hands of an informed reader, can disclose more about an investigation than would otherwise be obvious,” argues the government.
It says that Mr. Arar's motion is unreliable because it is based largely “on media reports, which may not be accurate, cannot properly be considered as evidence...and are nothing more than conjecture and generalizations.”
Finally, the government, which last week blacked out every word of an 89-page report about Mr. Arar's detention, says it is being as accommodating as it can be under the circumstances.
“There is no basis for the suggestion...that the government is trying to ‘cover up' or ‘hide' information from any kind or type from the inquiry,” it says.